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Don’t separate husbands and wives in shelters, says court

Residents of shelters have rights to privacy and dignity, Constitutional Court finds

By Safura Abdool Karim

5 December 2017

The Constitutional Court has ruled that couples cannot be separated in shelters. Archive photo: Ciaran Ryan

Residents of shelters have the constitutional right to dignity, privacy and security, the Constitutional Court has ruled.

On 1 December 2017, the Constitutional Court handed down judgments which declared the lock-out and family separation rules of the Ekuthuleni Shelter unconstitutional because they infringed the residents’ constitutional rights to dignity, privacy and security. The case has major implications because Ekuthuleni was a pilot project intended to be scaled up to 3,000 people in Gauteng.

The case began when the Constitutional Court ordered the City of Johannesburg to provide 86 residents with temporary accommodation “as near as possible to property they were evicted from. The case, known as Blue Moonlight, set a precedent that has since been used in other cases including arguments for the City of Cape Town to provide suitable accommodation for evictees in the Marikana Philippi case and in the Bromwell evictions. However, that was not the end for occupiers of Blue Moonlight.

A number of them were relocated to the Ekuthuleni Shelter until permanent housing could be found for them. When the residents arrived at the Ekuthuleni Shelter, they were informed that they would need to comply with the shelter policy which included “family separation” and lock-out rules, if they wanted to live at the shelter.

The “family separation rule” forced heterosexual life partners and married spouses to live separately in gender-specific dormitories. The “lock-out rule” dictated the times that the residents could enter and leave the shelter. Under the the lock-out rule residents were required to leave the shelter by 8am and could return after 5:30pm. All residents had to return to the shelter by 8pm or be locked out for the night. No residents were permitted to sleep or stay in the shelter during the day. As previously reported by GroundUp, these rules meant that families staying in the shelter were forced to live separately and that residents who were working nightshift or who were ill were left without accommodation during the day.

The City admitted that these rules were part of a “managed care policy” which attempts to discourage a “dependency relationship” between the residents and the City and encourage the residents to leave the shelters. Some of the residents did move out of the shelter as a result of these rules, though they had no other place to live. Many of them ended up in an old building while one began to live in a shack under a bridge.

Eleven of the shelter residents, represented by the Socio-Economic Rights Institute (SERI), approached the High Court for an interdict to stop the shelter from enforcing the lock-out and family separation rules. The residents also filed a case to challenge the constitutionality of the rules. In 2014, the High Court found that the rules were unconstitutional, stating that the family separation rule had “humiliating consequences”. The City then successfully appealed to the Supreme Court of Appeal which found that although the residents’ rights were being infringed, these infringements were justifiable in the circumstances. The residents then appealed to the Constitutional Court. The Centre for Applied Legal Studies (CALS), represented by the Legal Resources Centre, and the Centre for Child Law joined the case as friends of the court.

Justice Nonkosi Mhlantla, who wrote the majority judgment supported by five judges, had to decide three issues:

Whether the residents were protected by the constitutional rights to dignity, privacy and security of person;

Whether the lock-out and family separation rules infringed these rights; and

Whether the infringement could be justified.

The Supreme Court of Appeal had found, as the City had argued, that the temporary nature of the accommodation meant the residents would have diminished expectations of dignity, freedom and security of the person, and privacy, they would receive at the shelter.

Mhlantla disagreed with this, finding instead that the residents were entitled to the protections afforded by these constitutional rights. Mhlantla highlighted that every person in the country is afforded these rights, even those in prison, except when the rights are justifiably limited. Mhlantla found that both the family separation and lock-out rules infringed the residents’ right to dignity, stating that the lock-out rule was “cruel, condescending and degrading” and “treats people like children”.

In addition, Mhlantla found that the right to dignity included a right to family life and the right to raise a family which the family separation rule infringed.

The third issue, was decided on a technical basis.

The rules were declared unconstitutional and invalid. The court also interdicted the City and the shelter from enforcing the lock-out and family separation rules against the 11 residents and ordered them to permit heterosexual couples to live together.

However, Mhlantla’s judgment was just one of the four judgments handed down in this case. Justice Edwin Cameron agreed with the outcome of Mhlantla’s judgment but disagreed with her reasoning. He wrote a separate – but concurring – judgment supported wholly by two judges and partially by Justice Madlanga who wrote his own, brief judgment. In addition, Justice Chris Jafta wrote a concurring judgment that was partly supported by Chief Justice Mogoeng Mogoeng and wholly supported by Acting Justice Phineas Mojapelo. The Chief Justice also supported the entirety of Mhlantla’s judgment.

Cameron agreed that the rules violated the rights to dignity, privacy and security of person but he also found that the rules violated the right to housing. Cameron’s introduction of the right to housing meant that the rules were held to a higher standard, “reasonableness”. Madlanga’s brief judgment supported Cameron’s reasoning while Jafta agreed with excluding the right to housing. Jafta also voiced concern over how the City had undermined the residents’ efforts to bring this case by having the shelter management deny lawyers permission to use the shelter facilities for consultation.

Cameron also made an interesting point about the City’s argument that the residents received better treatment than other people who were homeless and without shelter by drawing an analogy with the provision of antiretroviral (HIV) medicines to prisoners.

He stated ”Vulnerability and dependence explain why prisoners in South Africa received antiretroviral treatment long before members of the public did. Their confined status gave them a special claim to concern and treatment. The fact that others, not imprisoned, were fatally worse off, did not justify denying the prisoners treatment. While the residents here are not in prison, they were evicted from their homes and, thus, too, have a special claim to concern.”

All in all, for multiple reasons, the judges found that the shelter rules were unconstitutional. As a result, residents of the Ekuthuleni Shelter – and temporary accommodation in Johannesburg more broadly – are no longer being subjected to lock-outs and are finally able to live as a family.